Lamb v. Wenning, 31A01-9104-CV-99

• Decision Date: 10 December 1991
• Docket Number: No. 31A01-9104-CV-99,31A01-9104-CV-99
• Citation: 583 N.E.2d 745
• Parties: Robin LAMB (Formerly Wenning), Appellant-Petitioner, v. Larry N. WENNING, Appellee-Respondent.
• Court: Indiana Appellate Court

Page 745

583 N.E.2d 745

Robin LAMB (Formerly Wenning), Appellant-Petitioner, v. Larry N. WENNING, Appellee-Respondent.

No. 31A01-9104-CV-99.

Court of Appeals of Indiana,

First District.

Dec. 10, 1991.

Linda B. Lorch, Lorch & Naville, New Albany, for appellant-petitioner.

Marcus M. Burgher, Corydon, for appellee-respondent.

ROBERTSON, Judge.

Robin Lamb [Mother] appeals the modification of the child custody order in the decree that dissolved her marriage to Larry N. Wenning [Father]. The trial court modified the child custody order by awarding the father primary physical custody of the parties' son, Jerry. We reverse.

FACTS

The evidence in this case is largely undisputed. The facts in the light most favorable to the trial court's judgment indicate that the child who is the subject of this action, Jerry, was born to Robin and Larry on June 13, 1983. Jerry's parents were divorced on January 5, 1990 when Jerry was six (6) years old. The agreement, which was merged and incorporated into the divorce decree, provided that both parents would enjoy joint legal custody of Jerry but that Mother would enjoy primary physical custody. Father agreed to pay child support under this agreement.

On January 16, 1990, soon after the divorce was final, Robin filed notice pursuant to Ind.Code 31-1-11.5-21.1 that she and Jerry would be moving to Missouri. Robin had been living with and was anticipating marriage to Steve Lamb who owns a farm in Missouri. Robin had hoped that she, Steve, and Jerry could move to Missouri and live on Steve's farm. Robin married Lamb on March 7, 1990.

On January 23, 1990, Father filed his petition to modify the custody decree, which petition reads in pertinent part as follows:

2. That there has been a substantial change of circumstances in that [Father] has just recently been informed by [Mother] of her intention of moving with the parties' minor child out of the State of Indiana and more than one hundred (100) miles from her present county of residence.

3. That it would be in the best interest of said minor child for the child to remain in his familiar surroundings, to include his community, school, church, friends and family.

On March 7, 1990, Father filed a petition for the emergency custody of Jerry. The trial court held a hearing on this emergency petition on March 8, 1990 (the day after Robin's and Steve's marriage) and conducted an in-camera interview with Jerry on March 9, 1990. The court granted temporary physical custody of Jerry to Father until the end of the Spring school term and temporary physical custody of Jerry to Mother for the summer.

The hearing on Father's petition for the custody modification was held on August 7, 1990. The trial court heard evidence and conducted another in-camera interview with Jerry. The evidence in the light most favorable to the trial court's judgment indicates that Jerry's mother's move to Missouri would take Jerry some 418 miles away from his father, his paternal grandparents, and other family members, and would make visitation with these persons more expensive and difficult. The move would prevent Jerry from attending the church that he and his father were in the habit of attending on a regular basis. The move would also require Jerry to change Evidence indicated that during the summer visitation Jerry spent with his mother on the farm in Missouri, they lived in a two-bedroom, two-bathroom mobile home. The mobile home was located on the wettest spot on the farm and the sewer line ran above the ground. Mother and Jerry spent one weekend, or at least one overnight, each in the months of June and July in Shelbyville, Indiana. Also, in July, Mother and Jerry spent another weekend or at least an overnight in Mount Vernon and Champagne, Illinois. Mother traveled with Jerry and Lamb to go to the aid of the Lamb's father when he was ill, even though Lamb has several siblings who could have gone to the aid of their father instead. Jerry did not attend church with his mother during the summer. The only children Jerry had to play with on the farm were the children of a hired farm-hand.

schools and baseball teams. Jerry would also be required to make new friends in Missouri. Evidence was also presented that the parents' ability to cooperate to promote Jerry's best interests had diminished since the onset of the present litigation.

Jerry was able to play on a baseball team during his summer visitation in Missouri. Mother and her husband were in the process of remodeling the farmhouse on the farm in Missouri and plan to move into it when the remodeling is finished.

In his brief, the father sets out the following "verbal order" entered by the trial court at the conclusion of evidence:

I'm not [sic] gonna change custody. It will remain joint, but I am going to find that it is in the best interest of the child at this point that he stay with his father and I am going to order that physical custody or primary visitation will be with the father ...

The trial court made the following written entry into the docket (pertinent part only):

Comes now the court, on [Father's] Petition to Modify and being duly advised in the premises, now finds that there has been a substantial change of circumstances and hereby modifies the Dissolution Decree as entered on January 5, 1990, as follows:

1. That the court hereby Orders that joint custody shall remain the same with the Father to have physical possessory custody of [Jerry].

DECISION

The law in this area should be well-settled as it is governed by statute and years of experience. Indiana Code 31-1-11.5-22(d) provides that:

The court in determining said child custody, shall make a modification thereof only upon a showing of changed circumstances so substantial and continuing as to make the existing custody order unreasonable.

In an initial custody determination, the trial court presumes that both parents are equally entitled to custody. Walker v. Chatfield (1990), Ind.App., 553 N.E.2d 490. The initial custody determination is based on the trial court's determination of which parent would be better. Id. However, a subsequent petition to modify custody is not a vehicle to relitigate the initial custody determination as to who might make the better parent. Id. In a subsequent petition to modify custody, the noncustodial parent bears the burden of overcoming the custodial parent's right to continued custody and must make a showing of a change in the custodial home which is of a decisive, substantial, and continuing nature. Id.

Our review of a trial court's decision regarding a child custody modification is limited to determining whether the trial court abused its discretion in applying the applicable statutory guidelines. Smith v. Dawson (1982), Ind.App., 431 N.E.2d 850. On appeal from a modification of a child custody order, we will not judge the credibility of the witnesses or substitute our judgment for that of the trial court. Barnett v. Barnett (1983) Ind.App., 447 N.E.2d 1172. We consider only that evidence which supports the trial court's decision. Smith, 431 N.E.2d 850. In reviewing the trial court's determination of custody rights, we will only reverse upon a showing of a manifest abuse of the trial court's discretion and such abuse will not be found unless the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable and actual deductions to be drawn therefrom. K.B. v. S.B. (1981), Ind.App., 415 N.E.2d 749.

In an action to modify a custody order, the noncustodial parent seeking custody has the burden of establishing that the original or existing custody order has become unreasonable due to a substantial and continuing change in circumstances. Pribush v. Roy (1983), Ind.App., 456 N.E.2d 747. The trial judge must consider the evidence with the best interests of the child or children uppermost in his or her mind as the paramount concern. Id. It is the effect upon the child which renders any particular change substantial or inconsequential. Ohman v. Ohman (1990), Ind.App., 557 N.E.2d 694, trans. denied. In order to modify a child custody order, the trial court must determine that the changed circumstances warranting modification are of a decisive nature and such changed circumstances will support a modification order only if the modification is necessary for the welfare of the child or children involved, thereby conclusively establishing that the existing custody order is unreasonable. Id. A custody modification may not be supported solely on an extrajudicial in-camera interview with the child. Simons v. Simons (1991), Ind.App., 566 N.E.2d 551.

Whenever the custodial parent intends to move outside of Indiana or 100 miles or more from his or her present residence, that party must file a notice to that effect in the divorce court and send a copy to the noncustodial parent with visitation rights. I.C. 31-1-11.5-21.1. Upon the request of either party, the court shall then set the matter for a hearing for the purposes of reviewing and modifying, if appropriate, the custody, visitation, and support orders. Id.; Smith v. Mobley (1990) Ind.App., 561 N.E.2d 504 (dissenting opinion of Judge Miller 561 N.E.2d at 509). Indiana Code 31-1-11.5-21.1 was not enacted to punish parents who move, but to provide a means for modifying visitation and support orders which would be made unreasonable because of a long distance move by the custodial parent. Id. The custodial parent's decision to move does not trigger a retrial of the original custody determination. Id.

Indiana Code 31-1-11.5-21.1 must be construed in conjunction with (and cannot supplant) I.C. 31-1-11.5-22(d), which, as set out above, requires a showing of a change in circumstances so substantial and continuing as to make the existing custody order unreasonable before custody may be modified. Pea v. Pea, (1986), Ind.App., 498 N.E.2d 110, trans. denied. The fact that the move makes...